Last Fall, Derek Khanna, then an intern at the Republican Study Committee (RSC) released a policy brief concerning copyright entitled “Three Myths about Copyright Law and Where to Start to Fix it.” Khanna insisted, based on a textualist reading of the constitution, that copyright has become too favorable to the interests of copyright holders rather than the public. Under the precept that a laissez fairemarket approach is ideal, he regards the current copyright system as an example of excessive government intervention.

RSC removed the brief from its website after less than 24 hours and promptly fired Khanna at the bequest of some Republican Congress members, but by then the post had garnered significant attention. Critics of copyright lauded the paper’s conclusion that the current system had overstepped its bounds, and Khanna’s Linkedin profile reveals an appearance on Fox News as well as positions with Yale Law School and the Department of Defense.

The brief also became a topic of discussion at CopyHype, Terry Hart’s blog devoted to an explanatory approach to copyright issues. Hart took on a fact-checking role regarding Khanna’s brief over the course of a blog post, as well as this statement about the role of evidence in copyright law.

In particular, Hart rebutted Khanna’s textualist reading of copyright’s purpose by focusing on legislative and judicial intent. Hart argues that, in fact, the purpose of copyright laws are the protection of artists and that intervention is in fact consistent with the government’s role in protecting personal property to support the existence of a free market.

THE BRIEF

In Khanna’s brief, he identifies three myths he believes undermine understanding of copyright law: “1. The purpose of copyright is to compensate the creator of the content…2. Copyright is free market capitalism at work…[and] 3. The current copyright legal regime leads to the greatest innovation and productivity.” All three myths are couched in terms of two underlying assumptions: the ideal market is laissez faire, and a textualist constitutional interpretation of copyright and patents’ purpose is both accurate and desirable.

Myth 1. The purpose of copyright is to compensate the creator of the content

Khanna attempts to debunk the first “myth,” regarding the purpose of copyright, through a narrow textualist interpretation of the constitution, focusing on the impetus that copyright “promote[s] the progress of science and useful arts.” Khanna asserts that, “because of the constitutional basis of copyright and patent,” reform must be based on maximizing “productivity and innovation” rather than awarding merit with financial compensation.

Myth 2. Copyright is free market capitalism at work

Khanna asserts that copyright is not free market capitalism, but rather “a guaranteed, government instituted, government subsidized content-monopoly.” Khanna considers strict statutory damages a source of excessive market intervention leading to disproportionate awards.

Myth 3. The current copyright legal regime leads to the greatest innovation and productivity

Khanna considers the current copyright regime ill-crafted to maximize innovation and creativity because he believes copyright terms outlive the period necessary to create incentive. Additionally, he emphasizes that the expansive current regime promotes “rent-seeking” behavior that ultimately interferes with innovation.

The brief also summarizes the problem of excessive copyright protection as well as posits various solutions. Of course, the protection is cast as oppositional to the constitution’s mandate that protection be afforded for “limited times.”In the brief, the effects of excessive copyright protection include: slowing “the creation of a robust DJ/Remix industry….Hampering scientific inquiry…Stifling the creation of a public library…Discouraging added-value industries…[and] Penaliz[ing] legitimate journalism and oversight.” Khanna’s solutions to improve the copyright regime include reforming statutory damages to making infringement fines proportionate to harm caused and avoid harassing lawsuits. Additionally he suggests expanding fair use, punishing false infringement claims, significantly limiting the term of copyright protection, as well as the creation of copyright renewal disincentives.

COPYHYPE RESPONSE

Terry Hart, the Director of Legal Policy for the Copyright Alliance and creator of the legal blog CopyHype, used Khanna’s brief as a case study in fact-checking the copyright debate as well as a poster child in a broader post about the failures of discourse on copyright reform. In particular, Hart goes through the myths, one by one, addressing additional or alternative evidence regarding Khanna’s assertions.

Myth 1. The purpose of copyright is to compensate the creator of the content

According to Khanna, the constitution is the source of the inarguable fact that copyright is meant to protect innovation, rather than compensate innovators. However, Hart turns to “the Supreme Court, Congress, and numerous jurists, scholars, and writers” as sources of the view that copyright is in fact meant to protect artists, authors, and other creators. Hart includes multiple passages from James Madison as well as Justice Stevens who wrote “Nothing in the text of the Copyright Clause confines the ‘Progress of Science’ exclusively to ‘incentives for creation.’”

Myth 2. Copyright is free market capitalism at work

Khanna considers copyright a “government subsidized content-monopoly.” To contradict this, Hart first characterizes copyright as property, rather than a subsidy, citing Thomas Paine’s characterization of literature as legal property, Locke’s labor property theory, as well as Eaton Drone’s description of copyright as a property right.

“Khanna’s characterization of copyright as ‘government-subsidized’ is completely erroneous. The government offers nothing to creators except a functioning market to pursue their own ends….[copyright as subsidy] would make all property a government subsidy”

Hart refers to a 19th century book on copyright to debunk the “monopoly” characterization, quoting excerpts that explain copyright cannot be a monopoly, because the goods are not being removed from public possession.

Myth 3. The current copyright legal regime leads to the greatest innovation and productivity.

Hart disagrees that there exists any significant viewpoint that fully supports the current copyright regime. He characterizes the term ‘innovation’ a vague “code word for increasing the bottom line of venture capital firms and the consumer electronics sector.” Hart considers this myth “little more than a strawman.”

Current status of Copyright Law?

In Khanna’s brief, he refers to the original term of copyright protection—14 years—as the likely term envisioned by the framers of the constitution. However, Hart points out that that term limit was borrowed from the Statute of Anne, which based the time period on the fact that two sets of apprentices could be trained in a new technique in 14 years. As a result, the arbitrary term is based on considerations that are no longer relevant.

Hart also demonstrates that Khanna’s most extreme allegation, that copyright is being indefinitely extended, is actually based on oft-repeated Lawrence Lessig rhetoric, stating that copyright has been extended “eleven times in the last 40 years”, and “every time Mickey [Mouse] is about to pass through the public domain, copyright terms are extended.” Hart points to a 2002 law review article by Scott Martin, stating Congress only altered the “appropriate duration” of copyright two times in the past forty years, in the 1976 Copyright Act, and the 1998 CTEA, while the other alterations to copyright were “short interim extensions.” Hart also quotes Edward Samuels, a law professor, as well as the Supreme Court stating that the infinite copyright is simply not the case.

COPYHYPE ON REALITY

In February, Hart wrote a post entitled “Bringing Reality Back to Copyright Debates,” in which he disagreed with the views of William Patry, the Electronic Frontier Foundation, Cory Doctorow, and others that copyright policy lacks an empirical basis. Hart’s argument relies on a paper authored by Michael Smith and Rahul Telang that survived empirically based papers and found that a majority of them identified piracy as a real source of harm. Hart also discusses the Khanna brief, characterizing it as a “cavalier revision of the historical record that is not uncommon among copyright skeptics.”

WHAT TO CONCLUDE

Which are the relevant facts, figures, and considerations to the debates surrounding the extent and limitations of copyright? After comparing Khanna’s brief and Hart exegesis, what emerges seems to be a disagreement about not only the direction copyright reform should take, but also the philosophical precepts that determine source of law, historical interpretation, and, in essence, reality.

Khanna’s brief is strictly textualist in interpreting the constitution, and perhaps narrow in interpreting intellectual property as a monopoly, rather than similar to other property rights. Hart, on the other hand, relies on Justice Stevens, the founding fathers, and various philosophers and legal scholars to elucidating effect. However, in some cases, it is not clear that he necessarily has the better source of law or policy, as opposed to simply a different one, depending on favored mode of legal interpretation. Additionally, he hardly addresses Khanna’s policy suggestions, perhaps because he agrees with them. So, who is correct? While it varies issue by issue, it seems Khanna and Hart embody different viewpoints and factions of the copyright debate, rather than a right or wrong answer to the complex questions of policy and law that emerge.